12/15/2010

Freedom of the Server Belongs to Him Who Owns One, Human Rights Watch

Human Rights Watch has now spoken on the Assange prosecution issue, and given the clout -- and the well-funded zeal of this organization -- we can expect that their position will become holy writ on the left and even liberal and center, and will serve as fuel for numerous crusades against the Obama Administration and corporations involved in this case like Amazon and Paypal for a long time to come. (I worked at HRW for 10 years in the 1980s; I have been a freelance translator and writer for years, and this essay only reflects my own personal views.)

First of all, I personally don't have any expert knowledge or even opinion about whether Assange should be prosecuted. He's a foreigner, and I simply don't know if you can gin up the 1917 Espionage Act in such a way as to prosecute him. It's also not important to me in the larger scheme of things whether or no Assange or anyone else is prosecuted, because I think there is a larger war being fought of which this is merely one campaign, and that battle is about morality and the nature of the revolution itself -- which has gotten off to a conspiratorial, abusive, and destructive start, all features that may grow permanent in our future Wired State, transcending governments and companies crippled by hackers and script kiddies, unleashing DDOS attacks.

I'm fully aware of all the arguments that if Assange can be prosecuted, so can I, as someone who has taken the cables and analyzed them and written about them. The Justice Department or FBI or other agencies can come and examine me at any time.

That said, I believe that human rights groups and now specifically HRW are overreaching in their eagerness to prevent prosecution and prevent what they see as a chill on freedom of expression, and making unnecessary and even inappropriate demands on companies to host or not host certain kinds of content. Today Ken Roth, but tomorrow Pamela Geller. Is that how companies should run things? I want this to be a continuous debate, not an edict.

1. Backlash as Priority

HRW says:

Regardless of how one views the intentions, wisdom or strict legality of the WikiLeaks release, we believe that resorting to prosecution will degrade freedom of expression for all media, researchers and reporters, and set a terrible precedent that will be eagerly grasped by other governments, particularly those with a record of trying to muzzle legitimate political reporting.

It is troubling to me this is the key reason that the liberals and leftists are seizing as the reason not to prosecute -- apres mois, le deluge. Accept that anarchists get to dump machine-produced sensitive cables, or usher in an era of fascism. Robert Wright essentially invokes this argument; many others will. "Even if we think Assange is wrong and his methods unwise, we can't let him be prosecuted because it will incite a backlash," goes this thinking -- as if only backlashes are requisite to judge policy and it is not deserving in its own right.

I do want to point out that HRW and other human rights groups seldom if ever deploy logic like that when pressing for the prosecution of a human rights crime; it's hard to think of any case that would persuade HRW that "the backlash" or any loss to democracy or freedom that might come from, say, prosecuting crimes against humanity that they allege have been committed by Israel, would be worth refraining from prosecution.

So the selectivity involved in invoking *this* as the reason not to prosecute strikes me as highly political -- like the U.S. government, HRW, with its lawyers and former prosecutor Ken Roth have to either find that the law specifies prosecution -- or not. A government prosecutor might be blinded by the passion of the moment or the threat to national security perceived and use the law wrongfully; therefore one would hope a human rights group could look more dispassionately at the law and see if it "fits." They seem to have concluded "there's no case" -- so that should be the priority and the essence of their argument -- not backlashes abroad, which in any event didn't happen yet.

By saying the chief thing wrong with all this is that it might incite imitation in other countries, HRW implies that these countries work by a hydraulic equation -- that they aren't inherently abusers of human rights. Of course we know that not to be true -- the Kremlin doesn't need the excuse of us prosecuting Assange to put all kinds of people in jail who don't belong there and stand by as journalists get their arms broken.

And by implying that every other expression is imperilled when the stealing of secret government documents determined by a court of law to be a threat to security when disclosed, one risks minimizing the actualities of freedom of expression currently enjoyed everywhere -- which of course, may I remind everybody, still include all the cables and previous leaks. This initial premise comes too close to the extremism of Dave Winer, who proclaims, "Journalism in the cloud is impossible after Amazon," and dictates the creation of a new Darknet separate from the existing commercial Internet, that would banish corporations as "not Internet people."

2. Assange's Intent was Knowingly Malicious. HRW invokes the idea of "the release of official secrets with the effect and intent of harming the security of a nation, in the sense of genuine threats to use force against the government..." and then proceeds to intone, "Diplomatic embarrassment, though potentially detrimental to the interests of the government, is not itself a threat to national security."

Yet if HRW reads over Assange's writings and statements, they will find that he had a clear-cut plan -- and intention -- to in fact conspiratorially contradict his ostensibly "openness" and in fact make the government closed, shut it down by forcing it to become more secret -- confuse it and cramp it up with the intent to bring it to its knees. And when the various armed forces tell personnel they can't read WikiLeaks (even as other armed forces allow it and of course it's available in the general press), they are indeed confusing the government, and as it re-inserts information into silos, making it "dumb". That's deliberate.

So HRW is in fact building the case for prosecuting Assange by conceding that *if* the government finds an intent to harm and genuine harm, it can proceed. "Diplomatic embarassment" is in fact only one factor driving the government response and isn't even mentioned in Harold Koh's letter, yet HRW doesn't concede that.

Robert Gates is quoted by HRW as saying the effect is "fairly modest" and reaction "overwrought," yet he has also been quoted as saying it is "morally wrong" and deserving of a "guilty verdict". He and others are likely to say a good many things before this is over, and contradict themselves; let's not make this a sound-byte gotcha and a forums copypasta, but deliberation with dissenting opinions -- like the Supreme Court does it.

3. Intention does matter -- that's in the law. It will likely be nearly impossible to establish intent in the way that "trial truth" requires it ("beyond a reasonable doubt"). HRW is dismissive of examining intent then, perhaps for that reason, although it implies that it isn't relevant, and doesn't address Assange's actual thinking or statements about his intent to cripple the U.S. (That would be reluctant with a perennial HRW stance of never taking a position on the nature of a non-state actor in addressing a state's obligations.) That's ok: others like me will consider this a matter of conscience and repudiate the non-state actors coercive method.

I also find it troubling that HRW is willing to jettison the "intention" discussion for the sake of the "distinguishing characteristic of the United States" which has "always been its high standard of protection for speech". Well, sure, you want to keep to a high standard, but what *if* an act *is* profoundly undermining of national security? What then?

4. HRW pursues the line taken by technologists that you "can't" remove this material from servers because it is copyable and able to be mirrored anywhere. Yes, I get it about "the analog hole" -- if you can see it, you can copy it, and it's difficult to control. That's not the position that copyright holders take with their content when stolen, however, and governments need not, either in protecting classified documents. Of course, governments and corporations can be quite thorough, and even 75 percent success would be quite a deterrent. But here's the problem with the HRW thesis that government offices should stop trying to keep these materials classified: indeed it is like when your trademark or copyright is stolen, you have to show that in fact you are upholding it as your mark.

If the U.S. were merely to shrug and appear as if they no longer view this as classified, it would open up not only the issue of whether any such material should ever be classified again, it would nullify any case for prosecution. They are not going to be doing that.

This story, involving online content and servers and corporations, is exactly like any typical DMCA takedown story. If you don't police your mark, if you don't make a good-faith effort to ask others to cease using it without your permission, if you make it seem like your copyright or trademarked content isn't really yours or you don't care, then you have no case. So we can expect that the U.S. will go on issuing what seem like silly directives to stop viewing or downloading the material -- it's not confusion or an idiotic belief that they can actually keep their own employees from accessing this content, but rather the need to exercise due diligence regarding their content.

We will see endless blogs on the hard left and on the libertarian right ridiculing and mocking and snorting at a U.S. government attempting to block this content (as on gawker.com). But they are doing no less than what Gawker.com itself did when its customer data base was stolen by hackers (!) after they criticized 4chan, the goon squad protecting WikiLeaks. Gawker didn't shrug and tell everybody to "share" and get over themselves. They sent out notices telling everyone to change their password and put up instructions and warnings on their websites. The State Department is no different than Gawker.com in its corporate behaviour about what was stolen from its servers.

The makers of Star Trek do no less when they issue a letter to Linden Lab, makers of the virtual world Second Life, urging them to remove all knock-off copies of their trademarked characters from their servers, necessitating Linden Lab to go flick off servers all the Kirks and Spocks.

HRW is right to raise the problem that such a policy, that I liken to "defending one's trademark," could put government employees "at risk for arbitrary discipline and prosecution". But HRW has no comment on the other side of this coin: what would be a fair position to take as to a requirement for what an employee can release from his files or not? If you are going to express concern for arbitrary discipline (although we've seen nothing of the kind), then morally, you have to think just what is ok for a government to require. A bid for radical transparency can't be an acceptable call to the U.S., unless you expect it to disband itself.

5. Actually, nothing happened yet. While many people will invoke the fear that any investigation or prosecution of Assange will unleash the prosecution of everybody else in the chain, from journalists to readers, it is important to say that it didn't happen -- yet. No one has been threatened; the requirement that federal employees not read what they were not supposed to read anyway is consistent with protection of content rights.

6. Government Action is like a DMCA Takedown Notice. The most important paragraph of the HRW letter is this one, because this is the one that will affect day-to-day policies -- Assange is very far yet from prosecution, and the case may never rise to the test:

The United States government and the Department of State in particular, has been an outspoken champion of Internet freedom globally, and condemned national "firewalls" and censorship of Internet sites. To maintain its credibility, we urge you to affirm that your administration will not seek to bar services to Internet publishers, or take down websites, merely because they have published material that the government believes should not be publicly available. We also believe it is important for the administration to affirm that it will not seek to pressure or influence any private enterprise to block or undermine any such website in the absence of a legal judgment. Human Rights Watch is very concerned by private companies' denial of services to WikiLeaks in the absence of any showing that any of its publications can legitimately be restricted consistent with the international right to freedom of expression.

What began as a fear that WikiLeaks might be prosecuted and aggressively censored by draconian methods now has been converted to a demand for a policy for how to stop the "chilling effect on speech." It will be raised a million times now as a reason for both government and corporations never to exercise any kind of due diligence over their servers. That's what troubles me, because I view that as an intrusion on to the right of association of companies or any platform providers, implying that they make judgements only if pressured by the government -- and also depriving the government from making judgements about criminality and filing requests.

Companies and individuals can always challenge a DMCA takedown notice -- they can challenge the secretive national security letter or any kind of government directive. They have all kinds of constitutional litigation possibilities at their disposal and these things are a give and take. Unlike the New York Times at the time of the Pentagon Papers, they don't need, and haven't asked for, any particular legal defense to withstand "government pressure".

And here's the crux of the moral problem, as I see it. The government of the United States is democratically elected. It has three branches of power and checks of balances. Why can't its demands be considered lawful? Oh, I totally get that even good democratic governments abuse power and there are all kinds of things that the lovely Obama hasn't delivered for the human rights movements. But by the same token, demanding this purism, I get to ask whether there's a basic agreement that governments *can* make lawful demands, and among them would be a request to companies not to carry their stolen dox on their servers.

The absolutism with which human rights groups and specifically HRW goes after their interpretation of what is universal and national human rights law always trouble me. Many Supreme Court cases have long deliberations and dissenting opinions issued with rulings that lay out conflicting arguments debated exhaustively on the way to making a decision. Not so the shrill call of human rights groups when they declare a government is wrong -- and now, also, increasingly, other organizations in society. Unlike the WikiLeaked United States and its partners in the international community, the deliberations of HRW and its board and staff are secret, and its opinion unified with dissent deleted.

It's their right to do that, but I can only shrug and say that it's only their opinion. It's one voice. It may not be right. If the democratically-elected government of the Obama Administration, probably the most open in history, sees fit to interpret the law on stealing of state secrets, hinging on a notion of "intent," and applying it to Assange, one absolutist human rights groups or even a whole movement of them saying it's wrong may not be in the right. What is right?

To make the case for a wrong, they would then have to go to international law and universal human rights embodied in UN treaties and such, and these laws may be just as vague or more vague on this question -- unless, of course, another absolutist special rapporteur is found to share the same sense of absolutism. I'll be the first to say these kinds of judgements -- made all the time -- are political. And that's ok. Let's not pretend that they are engraved on stone by Moses after being handed down by God Almighty, however.

7. In the absence of any valid case to be made by the U.S. government, or any well-argued Supreme Court ruling made upon appeal that becomes the law of the land, we'll have only this -- lots of hand-wringing and shrill denunciations and invocations of horrifying chills on speech. Just as Robert Gates finds the whole WikiLeaks saga "overwrought" and "not such a big deal," I'm afraid I personally conclude so far that the failure of Amazon or Paypal to do the bidding of a hard-left conspiratorial anarchist, or to obey the more "progressive" or liberal admonitions of human rights groups not necessarily making common cause with Assange, but concerned about "chill", just doesn't constitute the threat to speech invoked and claimed. I'm more worried about their threat to freedom of association at the moment, quite frankly.

Freedom of speech cannot trump freedom of association -- not in our country (see cases like the Boy Scouts of America and the ruling that regretably, in upholding this principle, concludes that the Boy Scouts can decide to bar gays) -- and not in the Universal Declaration of Human Rights, where Art. 30 ensures that one right cannot be used to trump another.

We might believe that the Boy Scouts, in the interests of non-discrimination and decency, should admit gays, (I do) but then the next minute, we might face litigation ourselves to admit Sarah Palin and her followers into our groups (I wouldn't want that). Freedom of association means freedom "from" as much as freedom "to".

I find just as chilling as the prospect that the government might come after me because I've written about the cables, the idea that any human rights group -- or any online guerilla activist like 4chan -- can put pressure on companies and tell them what to do *when they have not broken any law*. They are not charged to abide by the First Amendment; this is not like cleaning up toxic waste or having a women's washroom and parent leave.

Amazon hasn't disobeyed a law; there isn't a law that says the First Amendment trumps everything a company wants to do. While certain people think it has "caved" to "government pressure," there's actually no evidence of this. Amazon, which is, after all, a cool, liberal California company, has exercised good judgement about a probable cause not only for crime, but actual cause for violation of its TOS.

8. The invocation of the TOS is precisely correct: the TOS says you must warrant the documents are your own -- and in WikiLeaks case, they were lying -- the documents were stolen. They don't transform magically into being non-stolen just because you're involved in cause "journalism".

The invocation of the TOS or EULA might sound like a sort of ruse, but in the world of such corporations and their actions regarding their TOS, this is very, very common. In fact, I'm a huge critic of the TOS, which I believe is the greatest threat to freedom of expression on a daily basis in America -- but not for the reason that they decided that documents for which a "cease and desist letter" had gone from Harold Koh out mean they should default to cancelling the lease with a client over TOS violations.

I'd like corporations to exercise a lot more due process and a lot more transparency than they do on all kinds of things. But they did, in my view, in this case. Amazon issued a statement regarding their reasons for dismissing WikiLeaks. So did Paypal, for whom the matter was simpler -- not wishing to be liable for processing payments to an operation that may be found illegal. It's one thing to litigate against the government, and protest vigorously against the government if it bans Henry Miller's Tropic of Cancer; it's another thing to force every book store to carry it, even a school or church bookstore.

There's a great hue and cry every time this point is made in a debate, that Amazon and Paypal must have loads of stuff that is illegal on their servers they never do anything about -- why this?

As I've explained repeatedly, the California Business Model enables it -- that's the model that encourages and tolerates content first, then only removes it if there is a complaint -- and only if that complaint is found to be consistent with the TOS or law -- and then only in the company's judgement (that's so they can make the maximum income from traffic and ad-clicking). As we have seen with Google and Facebook, it can be a very long road to getting videos or texts removed with an incitement to jihad or antisemitic Holocaust denial or bullying of a disabled boy. They are private companies; they make their own singular deliberations -- just like Human Rights Watch.

9. In that sense, I reiterate that the call Human Rights First (a separate group which has made another more intrusive demand) to Amazon, that it disclose its communications about Lieberman's contact with them, is inappropriate. Amazon has acted as a free entity in a free society; it has explained itself to the public, and it's not required to further "WikiLeak" itself.

Indeed, demands that it should are no more proper than the government or any corporation demanding that Human Rights Watch's Tom Malinowski, a former administration official who is now HRW's advocacy director, should disclose *his* communications with the government on -- whatever. Non-governmental groups and corporations aren't required to yield the revolutionary, absolutist transparency that Assange demands -- and doesn't give for WikiLeaks itself. Unless there is "probable cause" of a law broken, or a group's own charter (or TOS ) broken, it hardly seems credible to demand such disclosures or to impugn that another group in society is cringing and caving to the government.

Why should corporations, with boards of trustees and even more importantly, customers -- lots of people -- have to answer to just some group in society that wants to make an object lesson of them? That goes to the heart of what the human rights movement paradigm has become: human rights groups believe they can a) interpret law b) hold not only governemnts but other groups in society accountable for obeying it. That's their right and their strength and that's what achieves good in society. Yet it's not unlimited and absolute, and companies and other groups in society also have their right to privacy and their right to their own internal deliberations without having to yield them.

To make the judgement call not to carry content on their servers, companies aren't required to demonstrate that they've legally determined that "any of its publications can legitimately be restricted consisent with the international right to freedom of expression." They can just decide they don't want to because there's no compelling civic or legal reason to do the opposite. (And funny, that, HRW invoking much more restrictive "international rights" like Art. 19, and not the First Amendment -- and not conceding that the international treaties aren't self-executing in the U.S. anyway.)

Human rights group can tell toy companies not to let poison creep into toys; they can tell restaurant chains not to discriminate against minorities; they can tell oil companies not to collude with murderous death squads in a quest for security -- they all have valid laws and standards for these acts of conscience. Where's the requirement that a non-state actor *has* to store a kind of speech?

One always wonders what HRW *would* find appropriate to restrict content: if thousands of sensitive cables regarding high matters of national security like nuclear weapons and Iran's nuclear ambitions don't count. In that sense, it's like that elusive "proportionate force" that HRW might some day bless an army somewhere for in fact using -- every other time, however, it's been "disproportionate".

10. What's troubling about this moment is that in the absence of a target -- an actual government actually prosecuting Assange, which they will not likely do, or at least for a long time -- there will be the ever-popular "surrogate" target that human rights always love to go after because it's a much more low-hanging fruit. President Obama hasn't done anything yet, and Harold Koh has only written a C&D; meanwhile, Amazon has actually taken abrupt action, so has Paypal and Mastercard and others. So without the *actual* target for their ire, human rights groups and all sorts of angry political groups will feel that now they should go after Amazon, waging a consumer boycott, bullying the company constantly online with taunts and sneers, and as we've seen, even using the DDOS attack as some kind of "civil disobedience" to take them off line. I find that unwarranted and immoral.

The Internet has to be a balance of freedom of expression and freedom of association, public and private. Corporations, if they are to avoid liability and litigation, have to exercise good judgement, and they have to have rules. And in my view, a decision not to permanently host materials for which the government has issued a letter urging they be removed (rightly or wrongly), and materials that are not in fact the property of the customer, but are stolen, don't *have* to be justified -- just because some watchdog group thinks it's the right thing to do to fly in the face of morals and the invocation of law -- admittedly in pursuit of some higher (and utopian) notion of a perfect world (likely to merge with the Wired State).

In a press release issued with the letter, HRW said "Human Rights Watch criticized private companies that had denied services to WikiLeaks in the absence of any legal judgment against it."

But there weren't any legal judgements mandating the companies to host WikiLeaks: this is not like a court ruling mandating a housing complex to stop discriminating against blacks.

Companies will not operate in that pre-emptive, perlustrative mode, reviewing content of every conceivable kind -- whether libelous, stolen, child pornography, incitement to violence -- whatever. But they also won't leave such material on their servers in violation of their TOS and simply wait for a court order before they move. Only radical non-governmental servers such as Calyx will do so -- like only some radical book publishers would publish certain books in the 1960s that were banned.

Whatever your belief about the content, if you believe in human rights, you have to leave the judgement about whether to host content to the owner. Freedom of the press not only belongs to him who owns one; now freedom of the press belongs to him who owns the server. Don't like Amazon? Build your own server farm and host in the cloud. Don't like the restrictions of ISPs and domain registrars? Build your own Darknet, and see if anybody else shows up to pay for it, and don't be surprised when the government infiltrates and eventually raids you for all the pyramid schemes, fraud, child pornography and actual incitement to violence that you will have encouraged and enabled while your script kiddies were busy taking down Amazon.

10. I'll also note that I'm troubled by the very, very weak response from human rights groups on the question of the potential harm of WikiLeaks. When a half dozen groups put out a letter earlier this summer, and were challenged viciously by Alphaville Herald and others, they went silent and didn't stick to their position. I couldn't get them to talk! They never sought any publicity for their joint letter. When #cablegate was announced, some of the same groups made a more strenuous plea, but then that concern was quickly overrun by the "chill on free speech" concerns to which they've given much more energy and publicity. That concerns me. They need to stay on this issue of protection of sources, because in fact many more sources than just the journalists and human rights activists are at risk -- all kinds of other people are, from ambassadors from other countries to truck drivers to policemen who spoke to Embassy officials of their concerns.

Like Human Rights First, HRW is only willing to express concerns about "human rights defenders" that would place them at risk -- truly, this needs to be expanded to *anyone* harmed. A policeman who tells a story about the torture of someone accused of assassination in Turkmenistan isn't a human rights defender, but could be jeopardized by being included in a cable.

11. The absence of a "clear and present danger" is a concept that has always been a national debate -- and a very intense one. I'm very concerned that it stay an open debate, because no court of law has yet determined that there is no threat from WikiLeaks, even if Human Rights Watch has.

HRW cites international law:

The Johannesburg Principles for National Security, Freedom of Expression and Access to Information," a legitimate restriction on the basis of national security must have as its "genuine purpose and demonstrable effect...to protect a country's existence or its territorial integrity against the use or threat of force, or its capacity to respond to the use or threat of force, whether from an external source, such as a military threat, or an internal source, such as incitement to violent overthrow of the government." Embarrassment to a government, concealment of wrongdoing, and hiding the workings of public institutions, are not of themselves threats to national security.

But some will find that regardless of the issue of "embarassment," is easily cast aside because the government will in fact cite the threat of force, the incitement to overthrow government. Assange said he wished to cripple the U.S., which he viewed as "an authoritarian regime," and that he wished it to be made stupid, and brought to its knees. That's not enough for human rights groups. But I think more countries than HRW might think would be willing to say that WikiLeaks *was* meeting the Johannesberg test.

12. Human Rights Watch says in a FAQs attached to the letter that companies "have a responsibility to uphold human rights".

Private companies have a responsibility to uphold human rights standards in their operations. One of those standards is the right to information and freedom of expression. The companies that have withdrawn services to WikiLeaks have done so under a variety of rationales, from terms-of-service violations, to concern that WikiLeaks may be engaged in illegal action, although none have been proven. It has shown how dependent publishers can be on the relatively small number of companies that act as effective "gatekeepers" to mass internet access. Human Rights Watch encourages all corporations to resist becoming proxy censors for governments that act in violation of the international guarantee of freedom of expression and information. To ensure that they do not become censors, they should have effective human rights policies and procedures in place to safeguard freedom of expression and privacy online.

Human Rights Watch also urges governments to refrain from placing pressure on private companies to deny access or services to sites they consider to be publishing illegal material, in the absence of a legal judgment that is consonant with international guarantees of freedom of expression and information.

But they also have a responsibility to hold up the rule of law, and that includes the U.S. Code regarding criminal acts. Again, if they get a cease & desist letter (or see one published on government servers!), they have every reason to prudently heed it if it seems to be a case. They don't *have* to make a finding whether it *is* prudent; HRW itself doesn't have the authority or power to make that finding; courts do. So let them. If a company feels they've been "pressured" by the USG, they can sue them. They aren't doing that. They didn't feel pressured. And in the coming weeks, they may be only pressured by one thing: human rights watch waging war on them by proxy against what they think is the USG's flawed analysis about WikiLeaks.

13. I'm glad HRW is joining me, after a six-year struggle on my part, in worrying about corporations who serve as "gatekeepers" to Internet access. They never did this before, that I can see, although they've had a general policy to promote Internet freedom as a free-expression right.

That is, HRW doesn't go around helping people who have been banned from forums, ejected from online games, or stripped of their virtual property and expelled from virtual worlds.

They would find that trivial. Now they don't. That's political. That's their right, but I do want to emphasize just how large and complex this topic is. They didn't care -- when I did -- that Beth Noveck of the White House Office of Science and Technology closed comments on forums. They didn't care -- when I did -- that DipNote and all kinds of other new-fangled "Gov 2.0" sites run by the government didn't put the First Amendment into practice, but put into practice restrictive TOS copy and pasted straight out of a MMORPG or a social media website corporate TOS. That was so they wouldn't be overrun by birthers and dopers. They didn't care -- when I did -- that a government official masked with a Second Life avatar name told me to shut up and stop making a comment in backchat about the war in Afghanistan while a State Department official was trying to put on a lovely show about foreign diplomacy initiatives. All of these issues might seem minor, with the rejoinder -- well go somewhere else, go on your own blog -- but that's not the argument HRW is making about this. They aren't saying, ultimately: Assange, go on your own blog. (Note to Fiskers: if in fact HRW has somewhere, in its voluminous zillions of reports and press releases, in fact criticized some ISP or server company for something (say, Egypt, which recently invoked the TOS of a company to block content), then great. But they haven't tackled the corporate TOS qua corporate TOS in this country as itself a problem, not just a pretext.)

13. "To ensure that they do not become censors, they [corporations] should have effective human rights policies and procedures in place to safeguard freedom of expression and privacy online," says HRW. Well, why not the First Amendment itself? A policy isn't the same thing as enforcement of law, as HRW knows only too well in dealing with various policies supposedly making the extractive industry into a force for good. While "safeguarding freedom of expression" -- whatever that is, exactly -- seems nice, are we going to pick and chose? Keep Assange's materials radically undermining the U.S. and exposing people to harm on the servers, but delete antisemitic, anti-Muslim, and anti-gay comments on Facebook? Any policy about freedom on the Internet can't be just for what you find politically correct.

There has been some drive by human rights groups to have Internet Service Providers join an initiative called GNI. Some haven't joined, which earns them endless browbeating by some like Evgeny Morozov, self-styled new media curmudgeon who says he is anti-technoutopian, but who is actually a meta-utopianist of the first order, imagining a world where intellectuals with technological savvy will decide everything and rule. Why should a company *have* to join some initiative? It doesn't mean they are poor corporate citizens if they *abide by the law* and *there is no law that says you HAVE to enforce the First Amendment on your servers*; indeed, the leftist circles in which HRW travels is most concerned to restrict the speech of movements they don't like, such as the Tea Party, in the name of "civility".

14. I've thought about this problem for years. In writing for RFE/RL, I did indeed raise the issue of whether or not we should strive for a First Amendment regime on all servers, public or private, given the role of servers not so much as "gatekeepers" but as the literal sustainers of the public commons -- which is increasingly for many, many people, no longer in a town hall, a village square, a church basement, or a PTA meeting -- but online, in asynchronous blogs and posts and real-time text or chat or video dialogue or virtual reality.

And lately I've concluded that if you are going to uphold the laudable and even brilliant "Congress shall make no law" -- you can't have Congress make a law. That looks to me like there shouldn't be a SHIELD law -- but in the absence of a SHIELD law, you need a law regarding government officials themselves, and consequences for them if they leak data that compromises intelligence -- the onus is then put on the leaker.

And if "Congress shall make no law," and Lieberman shall make no SHIELD, then why does Amazon have to "make a policy"? It shouldn't. It's an independent and free agent -- I'm less impressed by corporate feel-good policies meant to mimic human rights treaties than most.

Instead, I think we have to have a free market in First Amendment-level service. Like all service-level-agreements between server leasees and the platform providers, we could encourage some companies to add to their list of services "compliance with the First Amendment". A very few will seize on this as a marketing proposition. Most won't because they will wish to reduce their liability -- for more DMCA takedown notices, libel suits, and national security letters. But compliance with the First Amendment has to be a choice unless you are a state.

15. As usual, Human Rights Watch had nothing to say about the smaller sort of non-state actors who caused the most damage so far -- 4chan.org and related groups that utterly paralized the sites of Amazon, Paypal and then even Gawker.com, merely for criticizing 4chan. In that, it is not unlike, say, a press release on Nigeria which picks out mainly the state's violations of human rights, and has less to say about the abuses of non-state actors in communal violence like Christians and Muslims.

HRW reserves its critiques generally to states, because only states are bound to uphold international human rights standards, but increasingly they (and even more so HRF), go on to bang on transnational corporations, which are big enough and powerful enough as "gatekeepers," I guess, to get a finger-wagging admonition to "develop a policy". This is a leaf from the book of the leftist struggle against capitalism, "neoliberalism," and evil transnational corporations that embody this evil -- wrapped up in a bit of human rights-speak.

But the figures who have REALLY in fact chilled speech -- script kiddies and hackers -- have gotten a pass, once again. HRW did not see fit to issue any calls or recommendations to them -- it's as if they are not on the map of human rights at all. Yet if the basic grounds for our call to corporations is to "move toward greater First Amendment freedom," our call to thugs has to be "stop cancelling it out with DDOS attacks". I predict their position there -- when they get to thinking about it -- will be took cook up something about how for some "legitimate causes" the DDOS is "a form of civil disobedience" -- not unlike Morozov's contorted blessing.

16. My call, again, is to keep this debate open and broaden it to one that is about the First Amendment in its entirety and where it will live and move and have its being -- not to a narrow focus on what is a fashionable political cause now among "progressives" to guarantee the right of anarchist cooperatives to publish stolen government secrets in Amazon's cloud. The ACLU, Electronic Freedom Foundation and other civil liberties groups converted the "Net Neutrality" debate, which is really a property and scarcity debate, into one of "freedom of expression" -- I do hope they fail on that because it is a bid to re-nationalize the Internet -- and they won't stop at cloaking this debate about the legitimacy of government secrets into one as well.

17. HRW is willing to concede that the government can keep secrets -- unlike Assange:

Governments are entitled to prevent their employees from releasing confidential information. There are many legitimate reasons governments withhold communications and documents from public circulation at any given moment. But governments also have a positive duty to give the public access to information, and particularly information about the workings of government itself. This duty can be realized by not criminalizing the media's act of publishing leaked information, by providing information in response to public request, and by limiting the amount of information that either remains or becomes classified.

If HRW believes that the lawful means to be encouraged for governments it to provide information in response to public request, and limiting classification, then it should apply that standard to the anarchists at WikiLeaks and the hackers who cooperate with them. They, too, should be told to apply for information as a public request under the FOIA, and not steal it.

Comments

Human Rights Watch has now spoken on the Assange prosecution issue, and given the clout -- and the well-funded zeal of this organization -- we can expect that their position will become holy writ on the left and even liberal and center, and will serve as fuel for numerous crusades against the Obama Administration and corporations involved in this case like Amazon and Paypal for a long time to come. (I worked at HRW for 10 years in the 1980s; I have been a freelance translator and writer for years, and this essay only reflects my own personal views.)

First of all, I personally don't have any expert knowledge or even opinion about whether Assange should be prosecuted. He's a foreigner, and I simply don't know if you can gin up the 1917 Espionage Act in such a way as to prosecute him. It's also not important to me in the larger scheme of things whether or no Assange or anyone else is prosecuted, because I think there is a larger war being fought of which this is merely one campaign, and that battle is about morality and the nature of the revolution itself -- which has gotten off to a conspiratorial, abusive, and destructive start, all features that may grow permanent in our future Wired State, transcending governments and companies crippled by hackers and script kiddies, unleashing DDOS attacks.

I'm fully aware of all the arguments that if Assange can be prosecuted, so can I, as someone who has taken the cables and analyzed them and written about them. The Justice Department or FBI or other agencies can come and examine me at any time.

That said, I believe that human rights groups and now specifically HRW are overreaching in their eagerness to prevent prosecution and prevent what they see as a chill on freedom of expression, and making unnecessary and even inappropriate demands on companies to host or not host certain kinds of content. Today Ken Roth, but tomorrow Pamela Geller. Is that how companies should run things? I want this to be a continuous debate, not an edict.

1. Backlash as Priority

HRW says:

Regardless of how one views the intentions, wisdom or strict legality of the WikiLeaks release, we believe that resorting to prosecution will degrade freedom of expression for all media, researchers and reporters, and set a terrible precedent that will be eagerly grasped by other governments, particularly those with a record of trying to muzzle legitimate political reporting.

It is troubling to me this is the key reason that the liberals and leftists are seizing as the reason not to prosecute -- apres mois, le deluge. Accept that anarchists get to dump machine-produced sensitive cables, or usher in an era of fascism. Robert Wright essentially invokes this argument; many others will. "Even if we think Assange is wrong and his methods unwise, we can't let him be prosecuted because it will incite a backlash," goes this thinking -- as if only backlashes are requisite to judge policy and it is not deserving in its own right.

I do want to point out that HRW and other human rights groups seldom if ever deploy logic like that when pressing for the prosecution of a human rights crime; it's hard to think of any case that would persuade HRW that "the backlash" or any loss to democracy or freedom that might come from, say, prosecuting crimes against humanity that they allege have been committed by Israel, would be worth refraining from prosecution.

So the selectivity involved in invoking *this* as the reason not to prosecute strikes me as highly political -- like the U.S. government, HRW, with its lawyers and former prosecutor Ken Roth have to either find that the law specifies prosecution -- or not. A government prosecutor might be blinded by the passion of the moment or the threat to national security perceived and use the law wrongfully; therefore one would hope a human rights group could look more dispassionately at the law and see if it "fits." They seem to have concluded "there's no case" -- so that should be the priority and the essence of their argument -- not backlashes abroad, which in any event didn't happen yet.

By saying the chief thing wrong with all this is that it might incite imitation in other countries, HRW implies that these countries work by a hydraulic equation -- that they aren't inherently abusers of human rights. Of course we know that not to be true -- the Kremlin doesn't need the excuse of us prosecuting Assange to put all kinds of people in jail who don't belong there and stand by as journalists get their arms broken.

And by implying that every other expression is imperilled when the stealing of secret government documents determined by a court of law to be a threat to security when disclosed, one risks minimizing the actualities of freedom of expression currently enjoyed everywhere -- which of course, may I remind everybody, still include all the cables and previous leaks. This initial premise comes too close to the extremism of Dave Winer, who proclaims, "Journalism in the cloud is impossible after Amazon," and dictates the creation of a new Darknet separate from the existing commercial Internet, that would banish corporations as "not Internet people."